{"operation":"document","citation":"22-0044","title":"Transportation Development Group, LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-10-13","effective_on":null,"summary":"22-0044 response to Transportation Development Group, LLC concerning 171.8, 173.185.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0044.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0044.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0044","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76876/220044.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nOctober 13, 2022\nMr. Jim Powell\nPresident\nTransportation Development Group, LLC\n190 W. Continental Rd. Ste 216-401\nGreen Valley, AZ 85614\nReference No. 22-0044\nDear Mr. Powell:\nThis letter is in response to your April 6, 2022, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to offering lithium batteries for\ntransportation. Specifically, you ask about the required lithium battery test summaries and if\nyour client would be considered an offeror.\nIn your letter, you state that your client offers audiology equipment including a headset and\ntablets that contain either a small cell (20 watthours (Wh) or less) or a battery (100 Wh or less).\nYou further state what while some manufacturers have made the lithium battery test summaries\navailable, others have provided only a statement certifying the cells and batteries have been\nsuccessfully tested and meet the requirements of the United Nations (UN) Manual of Test and\nCriterial Part III, subsection 38.3. Your questions have been paraphrased and addressed below.\nQ1. You ask whether your client needs a lithium battery test summary to ship a commercially\navailable tablet computer that has been purchased from a retail store and is incorporated\ninto the “kit” that your client sells to its customers.\nA1. The answer is yes. While the lithium battery test summary is not required to be\nphysically present with the shipment, your client must make available a lithium battery\ntest summary that contains all the required information specified in § 173.185(a)(3) of the\nHMR.\nQ2. You ask whether a product summary/confirmation—provided to your client from the\nmanufacturer that attests compliance with the UN 38.3 requirements for their tablets but\ndoes not contain all the required information specified in § 173.185(a)(3)—is sufficient\nfor your client to demonstrate compliance with the requirement to “make available a test\nsummary” when your client acts as a subsequent distributor.\n\n<<<PAGE 2>>>\n\nA2. The answer is no. Although a shipper could rely on information provided by the battery\nor product manufacturer as evidence that the cell or battery meets the required tests, this\nwould not meet the requirement for a manufacturer or distributor to make available a\nlithium battery test summary as required by § 173.185(a) of the HMR.\nQ3. You ask whether retailers of lithium battery-powered tablets are obligated to provide\nretail customers, such as your client, with a complete lithium battery test summary.\nA3. The answer is yes. As required in § 173.185(a), “each manufacturer and subsequent\ndistributor of lithium cells or batteries manufactured on or after January 1, 2008, must\nmake available a test summary.” For additional clarification, the lithium battery test\nsummary is considered “complete” if it contains all of the required information specified\nin § 173.185(a)(3) of the HMR.\nQ4. You ask what the penalties are if retailers fail to provide a lithium battery test summary\nas required under § 173.185(a)(3) to your client.\nA4. The enforcement process and possible penalties are detailed in 49 CFR Part 107\nsubpart D (Enforcement).\nIn your letter, you also state that your client has a reverse logistics aspect to its business. The\n“kits” are shipped back to your client after use, utilizing guidance that your client has prepared.\nQ5. You ask whether your client is performing the role of an “offeror” if it provides general\ninstructions to its customer as outlined in your letter.\nA5. Without reviewing the actual guidance, this Office cannot determine whether your client\nis performing the role of an offeror. However, if the guidance provided performs any\npre-transportation function—such as selecting the packaging—your client would be\nconsidered an “offeror.” See the definition of “pre-transportation function” in § 171.8 of\nthe HMR.\nQ6. You ask whether providing a return shipping label as outlined in your letter places your\nclient in the role of an “offeror.”\nA6. The answer is no. Solely providing a return shipping label is not considered a pre-\ntransportation function and therefore does not make your client an “offeror.”\n\n<<<PAGE 3>>>\n\nQ7. You ask whether providing both guidance and a shipping label to the customer places\nyour client in the role of an “offeror.”\nA7. See answer A5.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 4>>>\n\nWolcott\n22-0044\nTransportation Development Group LLC\n190 W. Continental Rd Ste 216-401\nGreen Valley, AZ 85614\n1-808-280-6047 Direct | 1-800-949-4834\nApril 6, 2022\nPipeline Standards and Rulemaking\nU.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nEmail pdf to infocntr@dot.gov Phone: 202-366-8553\nInterpretation request – Lithium Batteries, 49 CFR 173.185\nMy client ships a hard sided impact-resistant case (like a Pelican Case) that encloses audiology\nequipment to test a patient’s hearing in the field, without having to go to a dedicated facility with\nan audiology booth.\nInside the case is a lithium-battery powered headset that uses their proprietary technology and a\nlithium-battery powered commercial tablet computer, such as an iPad or a Samsung Galaxy.\nThough a variety of tablet and mobile devices are used, their headset is always the same. For the\npurpose of recalibration, the customer needs to be able to return the entire “kit” to the client.\nThe headset and tablets contain either a small cell (20 Wh or less) or battery (100 Wh or less).\nWe have questions surrounding the lithium battery requirements in 49 CFR 173.185 as it affects\nthese shipments.\nTopic #1: Lithium Battery Test Summary Report Availability\nWe have the lithium battery test summary for the device they manufacture; that’s not an issue.\nThe problem is with obtaining the TS reports from the manufacturers of the commercial tablet\ncomputers.\n49 CFR 173.185(a)(3) says that each manufacturer and subsequent distributor of lithium cells or\nbatteries manufactured on or after January 1, 2008, must make available a test summary.\nIf they purchase an Apple iPad, a Samsung Galaxy or other tablet computer at a retailer (i.e. Best\nBuy, Acme Electronics, or wherever…) and they ship this device by air or ground to their customer\nas part of the kit, does this make my client a “distributor” as mentioned in 173.185(a)(3)?\n1\n\n<<<PAGE 5>>>\n\nThis is important because some computer manufacturers have stated my client is not a\n“distributor” of their tablets and is not entitled to a Lithium Battery Test Summary report.\nSome manufacturers have put their Lithium Battery Test-Summary reports behind a “paywall” of\nsorts, where you must subscribe to a third-party service to access them.\nMy client has free access to a summary document from some of the manufacturers showing a list\nof the devices and the battery information in a summary, but it does not comport with the Test-\nSummary report requirement in 49 CFR 173.185(a)(3) as it’s missing many of the details such as\nthe information in 49 CFR 173.185(a)(3)(i) through (v). Here’s an example of this attestation from\nApple computer. It includes a list of the part numbers and this statement:\nApple/Beats product batteries have been successfully tested and comply with the UN Manual of\nTest and Criteria, Part III, subsection 38.3, Revision 3, Amendment 1 or any subsequent revision and\namendment. Product batteries have been manufactured under a quality management program as\nspecified in 2.9.4 of the UN Model Regulations.\nHere’s our question in three parts:\nQuestion 1A: Does my client (the shipper of hearing equipment) need a Lithium Battery Test\nSummary Report to ship a commercially available tablet computer, purchased at retail, that is\nincorporated into the kit that they sell to their customers for hearing-testing? They are not a\ndistributor of computer equipment, but they are an offeror of someone else’s tablet. We are\nassuming that yes, my client does need a Test Summary Report, since they are offering these tablet\ncomputers for transportation in commerce as part of their “kit” . Please confirm this assumption.\nQuestion 1B: If my client does need a Test Summary Report, but is unable to get it, is a product\nsummary/confirmation from the manufacturer that attests compliance with the UN 38.3\nrequirements for all their tablets and cell phones sufficient?\nThat summary does NOT comport with the detailed requirements of 49 CFR 173.185(a)(3)(i)\nthrough (x). However, it attests that the device meets the requirements of the UN Manual of\nTests and Criteria Part III, subsection 38.3, Revision 3, Amendment.1\nIs my client’s possession of this summary nonetheless sufficient for my client to demonstrate to FAA\nor DOT inspectors its compliance with the requirement to “make available a test summary”? Or\nwould my client need possession of the actual test summary report in the format prescribed by 49\nCFR 173.185(a)(3)(i) through (x)?\nQuestion 1C: Are the retailers of lithium battery powered tablet computers legally obligated to\nprovide retail customers, such as my client, with a complete test summary report? What are the\npenalties if retailers fail to provide a test summary report to my client as required under\n173.185(a)(3)? What is my client’s recourse if the seller of the electronics does not comply with\nmy client’s request for a Test Summary Report?\n2\n\n<<<PAGE 6>>>\n\nWhat course of action should my client take? Should this violation be reported to DOT PHMSA?\nTopic 2 – Reverse Logistics\nProduct Returns from a Customer and Pre-Transportation Functions\nCustomers will need to ship hearing equipment back to my client for recalibration. The package\nwill contain a headset and a commercially-available tablet computer that each contain a small\nlithium cell or battery. The package will not be marked, as it qualifies for the exception of smaller\ncells and batteries (49 CFR 173.185(c)(1)(iii)) contained in equipment and within the number of\nbattery and consignment limits.\nMy client wants to provide customers with general guidance on how to return the hearing test kit\nwithin the applicable shipping regulations of 49 CFR. However, as my client does not have access\nto the equipment being offered for return shipment, they do not want to assume the liability of\nacting as an \"offeror\".\n1. Would issuing either of the following be considered \"pre-transportation\" services, or cause\nmy client to assume the role of \"offeror\"? My client wants to provide general instructions:\nInspect the tablet and headset for physical damage or swelling. If damage or swelling are\nfound, please reach out to the manufacturer for further instructions. If the tablet and headset\npass this inspection, prepare the package for shipment:\na. Place the headset in shipping mode by setting the shipping switch to the “off”\nposition. This switch can be found inside the right (red) earcup. Refer to the photo\nbelow to confirm the switch is in the off position.\nb. Turn the tablet off by holding down the power button and selecting the option to\nshut the device down.\nc. Place the equipment back in the original hard-sided case as shown in the photo\nbelow.\n3\n\n<<<PAGE 7>>>\n\nd. Ensure that no more than (2) headset packages are shipped in one consignment.\nFollow the instructions of the carrier you are using. Here are lithium battery guides for FedEx and UPS\nFedex: How to Ship Wet, Dry, and Lithium Batteries | FedEx\nUPS: How To Ship Batteries | UPS - United States\nMy client wants to issue a UPS or FedEx return shipping label to the customer for returning the\nequipment. The shipping label would be paid freight collect to my client’s account and would\nsolely act as a consignment label with an air waybill number. The shipping label would NOT act as\na DG/HazMat label, nor would it be used to prepare HazMat paperwork, as the equipment\nqualifies under the exception for smaller cells and batteries (49 CFR 173.185(c)) and does not\nrequire specific package marking.\nQuestion 2A: Would my client, in providing general instructions to the customer as outlined in\nitem 1 above, place my client in the role of an offeror?\nQuestion 2B: Would providing a return shipping label as outlined in item 2 above place my client in\nthe role of an offeror?\nQuestion 2C: Would performing both item 1 and 2 functions for the same customer possibly put\nmy client in the role of an offeror?\nThank you in advance for your guidance, and please do not hesitate to reach out with any\nquestions.\nSincerely,\nJim Powell, DGSA, CDGP\nPresident\nTransportation Development Group LLC\njim@dgtraining.com 1-808-280-6047\n4","truncated":false,"body_characters":12895}